FFCRA and Curriculum Choices: When Is a School “Closed?”

As the school year approaches, employees with school-age children may be dealing with uncertainty in school schedules and the options available to them. Many schools are structuring the 2020-21 school year by giving parents choices as to whether they will send their children to school in-person, remotely, or using a combination of those options. Families First Coronavirus Response Act (FFCRA) was designed to allow parents who cannot telework and whose children’s schools or daycares are unavailable due to COVID-19 to take both Emergency Paid Sick Leave and Expanded Family Medical Leave to care for their children. As this leave is available only to employees whose children’s schools are “closed,” what does this mean for employees who are offered a choice?

Although neither the FFCRA regulations nor the Department of Labor (DOL) FAQ page addresses this issue explicitly, the same general framework still applies. The DOL has deemed a school to be “closed” when the physical location is closed to students. If the physical location is open to students, therefore, even if the students choose not to attend in-person, that school is not considered closed. Along those same lines, if students have the option to attend school in person on a given day, then the school is not deemed to be closed on that day, and FFCRA does not apply. If parents are given the option of sending their children to school in person a few days per week, then the school is not closed on any of those days. Finally, if an employee’s child’s school has an option to attend in-person five days per week, but also has an online option, that school is not considered closed on any weekday, and that employee is not eligible for leave due to school closure under either type of FFCRA leave.

Every scenario may have other circumstances that affect leave eligibility. Contact Employers Council for help.